Smt. Bandana Roy, President

The case of the complainant in brief is that OP No.2 is the land owner of 9.02 dec of land of mouza Padumbasn J L NO. 144 being plot no. 2235, 2235/2852 and 2237/2855 under Tamluk Municipality in the district of Purba Medinipur. The OP No. 1 is a developer/promotor of said land on which he is constructing his flat and there was an agreement between the OP No.1 and OP No. 2 regarding sale of the flats. The complainant wants to purchase a flat from the OPs in the said apartment. On 18.12.12 he paid Rs.1,00,000/- by cheque No. 005401 of SBI IOC Town Haldia Branch for a total price of Rs. 11,000,000/-.  The OPs promised to complete the said flat within one year from the date of agreement on 18.12.12.  On 23.03.13 the OPs again received Rs. 4,00,000/- by two cheques  drawn on SBI  IOC Haldia Township Branch and on 09.09.14 the OPs received Rs. 3,20,000/- by  a cheque drawn on SBI HRC . The OPS. could not complete the said  construction till May 2014 and thereafter the complainant supplied the doors windows and frames for the said flat at his own cost of Rs. 30,000/- for setting the same in the said flat.   The OPs did not  complete the construction of said flat till December, 2014 and complainant again supplied marble stone  to the OP no.1 at his own cost of Rs. 80,000/- in January / February 2015 and in March, 2015 the complainant again supplied wall tiles to the OP NO.1 at cost of Rs. 25,000/-. The complainant also deposited Rs. 15,000/- in March, 2015 as advance to the grill shop owner, but the OP no1.did not take supply of the grills from the said shop. Again and again the complainant requested the OPs to complete the said flat but he did not complete the said flat till now. In the first part of January 2016 the OP No.1 told the complainant that he would make conveyance deed of said flat in favour of the complainant and asked to arrange the same to the complainant. The complainant made arrangement for execution of the deed of conveyance and made demand draft of Rs. 1,12,802/- on stamp paper of Rs. 21,632/-   but the OP No1 ,all on a sudden, told that he shall not  execute the deed of conveyance of said flat. Then the complainant has cancelled said draft on 08.04.20166. The OP no1 did not complete construction of said flat and he refused to make conveyance of the flat.

In such circumstances, the OPs have made unfair trade with the complainant and complainant has been suffering from mental agony and financial loss and prays for relief asper prayer of the complaint petition.

The OP No.1 contested the complaint case by filing written statement. OP no.2 did not appear to contest the case in spite of receipt of summon and the case was heard exparte against this OP. The OP1 contended that the allegations made against him in the complaint are baseless one. This  OP No.1 contends that OP No.2 is the land owner of 9.2 decs of moua Padumbasan JL No.144 bearing plots no. 2235, 2235/2852 and 2237/2855.  He admits that the OP No.1 is a developer of said land and was constructing a residential flats at his own cost and would sell it thereafter. The complainant wanted to purchase a flat in that apartment measuring 800 St.ft. The complainant made an agreement on18.12.2012 with the OPs by paying Rs. 1,00,000/-  and this OP promised to  complete the said flat within one year from that date. The OP again received Rs. 4,00,000/- by two cheques drawn on SBI Doc. Haldia Refinery campus Branch on 23.03.2013  and Rs.3,20,000/- drawn on the same bank  on 09.09.14. This OP also disputes supply of doors and windows frame at his own cost of Rs. 30,000/-to the OP No.1 and that the complainant in the month of January/February supplied marble stone worth Rs. 80,000/- to OP No.1 for setting the same in his flat to be delivered to him and that the OP no.1 did not take delivery of the grills manufactured at the cost of complainant for the same flat. This OP also denies the fact of making conveyance deed of said flat in favour of the complainant. This OP denies query made Demand Drafts of Rs. 1,12,802/- for stamp duty and Rs. 21,632/- as registry fee on 21.01.16. The OP further denies that he cancelled the said draft on 08.04.2016 and that he never refused to execute deed of conveyance of said flat. The specific case of this OP is that he obtained building plan approved from Tamluk Municipality and started construction of “Sebon Apartment”  on  plot No. 2235, 2235/2852 and 2237/2855 of mouza Padumbasan JL No. 144 . That as per terms and conditions of agreement the complainant cannot get refund their advanced amount.  This OP contends that he did not made any unfair trade practice with the complainant and prays for dismissal of the complaint case.

Point for decision

Whether the complainant is entitled to get relief, as prayed for?

Decision with reason

We have perused the materials on record very carefully. Admittedly, there was an agreement between the complainant and the OPs for purchasing the disputed flat and admittedly, complainant, an intending purchaser paid Rs.8,20000/-(Eight Lakh Twenty Thousand) to the OP which will be seen also from the copy of money receipts. Admittedly, in spite of payment, OP did not deliver possession of the flat to the complainant and did not execute and register Deed of Conveyance in favour of the complainant. Heard argument of ld. Lawyer of both sides in this regard. Ld. Lawyer for the complainant submitted that complainant being frustrated want to get back his money with interest. Ld. Lawyer referred 2016(3) CPR 271 (NC) wherein, it has been held that ‘a person booked a residential flat for the purpose of having a roof over his head and not for the purpose of claiming refund with compensation at a later date’. Ld. Lawyer for the complainant further referred the decision reported in 2016 (3) CPR 159 (NC) which says that the consumer cannot wait indefinitely for obtaining possession after making a major chunk of payment to the builder. The facts and circumstances of the present case indicate that the OP builders have failed to offer any reasonable explanation for causing delay in the delivery of possession of flat. OP stated that they have finished the construction work of the building but lost the building plan. OP1 stated that the complainant cannot get refund of money. This contention of the OP builder is wholly untenable because complainant cannot wait indefinitely for the possession of the flat. OP1 is liable to pay interest for the delay. It was also held in 2016 (2) CPR 807 (NC) that ‘OP can be held for deficiency in service only when he was to provide service on payment of consideration paid or promised to be paid’. We have applied our anxious thought over the matter and we are of the view that the complainant is entitled to get relief, as prayed for.

Hence, it is,

ORDERED

That the complaint case being no. CC/87/2016 be and the same is allowed on contest against the OP1 and exparte against OP2. OPs are directed to deliver possession of the flat in dispute within one month from the date of this order. OPs are also directed to execute the register the Deed of Conveyance in favour of the complainant after receiving balance consideration money from the complainant. In default, complainant can get the Deed executed and registered on deposit of balance consideration money in this Forum and through this Forum.

Alternatively, OP 1 is directed to refund Rs.8,20000/- /-(Eight Lakh Twenty Thousand) with interest at the rate of 9% p.a. from the date of filing of the complaint case till date of payment which will also be made within one month from the date of this order.

OP1 is further directed to pay compensation of Rs.50000/- and litigation cost of Rs.10000/- to the complainant within one month from the date of this order failing which OP1 will be liable to pay Rs.200/- per day as punitive charges which will be deposited in the Consumer Welfare Fund.

Let copies of the judgement be given to the parties free of cost.